Subdivision is a local, often subjective, decision

by: Sarah L.C. Runkel

Bussanmas v. Des Moines
(Iowa Court of Appeals, July 18, 2018)

In 2015, Nicholas Bussanmas purchased a 2.34 acre lot zoned in a residential district in Des Moines, IA with the intention of subdividing the land for development. In April 2016, the City Plan and Zoning Commission recommended denying the proposal of the three-lot plat based largely on objections from neighbors that the lot served as a natural watershed. The Des Moines City Council denied the subdivision request in June finding principally that subdivision of the land may have negative effects on stormwater flow in the neighborhood.

Bussanmas appealed the decision to district court and then to the Iowa Court of Appeals. The Iowa Court of Appeals confirmed the decision of the district court, agreeing that the Des Moines City Council presented reasonable evidence that the property should not be subdivided according to Iowa Code Section 354.8 and Des Moines Municipal Code’s subdivision regulations.

The Court of Appeals concluded that:

“The Council clearly considered all of the relevant evidence and balanced that evidence as required by section 354.8(1), including the interests of Bussanmas, the neighbors, and the City, and it determined Bussanmas’s preliminary plat must be rejected. We agree with the district court that there is sufficient evidence to support the Council’s decision to reject the preliminary plat.”

According to Iowa Code Section 354.8, governing bodies shall review proposed subdivisions based on reasonable standards and applicable ordinances. Approval of a proposed subdivision is contingent upon the proposal’s conformity to the comprehensive plan, a balance between the proprietor, future use, and the public interest.

Subdivision is a process delegated to local governments. The decision for approval or denial should be based on reasonable evidence and evaluated by the standards in the comprehensive plan and local ordinances. This leaves the scope of influencing factors open to the reasonable interpretation of the local elected body.

Provision in subdivision ordinance requiring neighbor approval held to be valid

by Andrea Vaage

Counceller v City of Columbus Plan Commission
Indiana Court of Appeals, August 19, 2015

John Counceller owned a 3.26 acre lot in Indian Hills Estates in Columbus, Indiana. He had previously submitted three applications between 1999 and 2013 to subdivide his lot into two lots, which he either withdrew or let expire upon approval. In 2014, Counceller submitted a fourth application to subdivide his lot into a total of three lots. After the Plat Committee granted primary approval to the request, Counceller’s neighbors submitted an appeal.

Section 16.24.225 of Columbus’s subdivision control ordinance requires approval of 75% of neighboring property owners for the further subdivision of a lot. Almost all of Counceller’s neighbors objected to the application. Due to this objection, the Commission decided to deny the application. Counceller claimed the City should be estopped from applying the 75% approval rule. The trial court denied this petition.

One of the elements that must be met in an estopppel case is that the petitioner had a lack of knowledge and of the means of knowledge as to the facts in question. Counceller argued that he was not informed of the 75% requirement by the City in any of his previous applications; however, Indiana caselaw is clear that “property owners are charged with knowledge of ordinances that affect their property.”  As a general rule, equitable estoppel will not be applied against governmental authorities in those cases where the party claiming to have been ignorant of the facts had access to the correct information.  The City did not withhold the means for Counceller to become aware of the ordinance.

Counceller admitted that no City officials implied that this regulation would not be applied to his application. Counceller instead argued that because this regulation was not enforced in the other three applications it should not be enforced in the fourth. However, none of his other applications made it to the point where this requirement might arise. Furthermore, the fourth application is different from the previous three in that the application proposes the property be subdivided into three lots instead of two.

Counceller also asserted the City, by adopting the 75% rule, improperly abdicated its responsibility to exercise exclusive control of the subdivision of land to Counceller’s neighbors. While it is true that similar provisions have been held to be a violation of due process, the Court of Appeals found that the 75% rule in the Columbus ordinance did not give unrestricted power to the neighbors. Section 16.24.225 allows for a waiver to be obtained if the Commission “finds that the proposed change will not have a significant impact on the existing subdivision.” Counceller never requested this waiver in his application, nor did he ever choose to request the waiver when given additional opportunities.

The Court found Counceller had the means to learn of the 75% requirement, and the opportunity to request a waiver. The judgment of the trial court is affirmed.

Appellant in rezoning denial cannot turn appeal into inverse condemnation action

by Gary Taylor

Dahm v. Stark County Board of County Commissioners
(North Dakota Supreme Court, December 19, 2013)

Richard Dahm submitted an application to the County Board for a rezoning to change his property designation from agricultural to residential. Dahm also sought approval of a preliminary plat called Duck Creek Estates, a 99 lot residential subdivision to “provide a rural living environment in a quasi-urban setting . . . .” The land is two miles west of the Dickinson city limits, and located in between Interstate-94 to the north and Highway 10 to the south. The property is adjacent to a previously platted subdivision called Maryville Subdivision.  Two public hearings were held before the Planning and Zoning Commission. At the first hearing, the city/county planner recommended denial based on several alleged deficiencies, including: Dahm did not specify which residential district he wanted to rezone his property to; there was no contract with adjacent land owners ensuring access to Highway 10; the application did not indicate whether road and access widths would meet or exceed Stark County regulations; the application did not indicate what type of bridge would overpass Duck Creek; the application did not delineate the location of wetlands or flood plains or include a flood plain analysis and environmental study; development could result in “pinching” the water flow of Duck Creek; and no potable water was available at the site. The planner also found the application was inconsistent with the Stark County Comprehensive Plan.

Rather than making a formal recommendation to the County Board, the Zoning Commission continued the hearing to allow Dahm to revise his application. Dahm submitted additional information, including a letter responding to the deficiencies, a development narrative, an application package addendum, and proposed zoning maps. The Southwestern District Health Unit also submitted a letter stating that Dahm’s plans for a sewer system were satisfactory. Prior to the second public hearing, the city/county planner again recommended denying Dahm’s application based on several deficiencies, including: the lack of a traffic impact analysis; road access did not meet Stark County standards; the application did not include the location of wetlands and flood plains; the absence of a flood plain elevation study to ascertain whether the project met the requirements of the National Flood Insurance Program and state law; the absence of a field wetland delineation for use during U.S. Army Corps of Engineers 404 Permit Process; no potable water; and that the application was inconsistent with the Stark County Comprehensive Plan.

At the second public hearing, Dahm’s attorney stated that an adjacent landowner agreed to provide highway access, on the condition that the adjacent owner’s property could also be re-zoned. Dahm’s attorney also claimed traffic density would be about 925 vehicles per day. Members of the neighboring Maryville subdivision voiced their opposition to the application based on concern over traffic and dust control. The planner also spoke in opposition to the application. Members of the Planning and Zoning Commission reiterated their trepidation about traffic access points, increased traffic density, and the lack of a study concerning the wetlands and flood plains. Based on these concerns, the Zoning Commission voted 8-0 to recommend a denial of the zoning amendment request.  The County Board adopted the recommendation of the Zoning Commission and denied Dahm’s request by a vote of 5-0. In voting to deny the application the County Board also included a provision that Dahm could not appear before the County Board for six months.

Dahm appealed the County Board’s decision to the district court and also sought to introduce evidence of similar zoning requests that had been previously approved by the County Board. The court denied Dahm’s motion to submit additional evidence and affirmed the County Board’s decision to deny the application for zoning change.  Dahm appealed to the North Dakota Supreme Court.

The Court first noted that in framing its zoning decisions, the Zoning Committee and County Board looked to the Stark County Comprehensive Plan, a growth management policy amended in 2010 based on the county’s rapid growth in the agricultural and energy sectors. In its official recommendation, the Zoning Commission stated “there continues to be concerns with density, traffic, and sewer and water issues for residential development of the property.” Additionally, the Zoning Commission determined the application was inconsistent with at least four goals of the Comprehensive Plan related to compatibility of environmental characteristics of the site, adequacy of sewer and water services, the preservation of open spaces and natural resources, and the prohibition against locating development away from paved roads. The Court concluded that the procedure followed by the county “characterizes an exercise of discretion” that is “the product of a rational mental process by which the facts and the law relied upon are considered together . . . .”

Dahm also argued that when a subdivision plat addresses all issues listed in a county’s subdivision regulations it becomes the “mandatory duty” of the zoning authority to approve a subdivision plat.  The Court disagreed, stating that “The board shall consider all other relevant facts and determine whether the public interest will be served by the subdivision. . . . If it finds that the proposed plat does not make appropriate provisions, or that the public use and interest will not be served . . . then the board of county commissioners shall disapprove the proposed plat.”  The Zoning Commission and the County Board did take into account such factors as open spaces, drainage, streets, water supplies, and waste disposal, in addition to other considerations, in denying the application. Because it found Dahm’s application was at odds with the Comprehensive Plan, it was under no duty to approve the request.

Finally, Dahm argued the six-month restriction from appearing before the County Board was not only arbitrary, capricious, and unreasonable, it was also unconstitutional because a new ordinance (increasing minimum lot sizes from 7,000 square feet to 5 acres) was passed during the six-month prohibition period.  Because Dahm purchased the property in reliance on the original ordinance and subdivision regulations, the County Board’s denial deprived Dahm of all reasonable use of the property.  The Court stated that the moving party in a denial of a change in zoning request cannot turn his appeal into an inverse condemnation action, and declined to address Dahm’s claim of an unconstitutional taking of his property. It found that the decision to implement a six-month appearance restriction was also not arbitrary, capricious, or unreasonable.  The Board noted that Dahm had presented the Duck Creek Estates project three months in a row without adequately resolving the issues of roads, sewage, water, and population density. As the district court reasoned, “the time and effort expended by the Stark County Zoning Board, the City and County Planner, and by the Stark County Commission persuades the Court that there was no violation of Stark County’s authority and obligation to regulate land use . . . by their decision to impose the six month prohibition.” Given the repeated attempts to re-zone and the failure to make the requisite adjustments, it was not unreasonable for the County Board to implement a six-month wait period.

Ordinance prohibiting lot splits found constitutional

by Victoria Heldt

Richard W. Guse and Clara Guse v. City of New Berlin and Common Council of the City of New Berlin
(Wisconsin Court of Appeals, January 18, 2012)

The Guses own a lot in the Hillcrest Terrace Subdivision in the City of New Berlin.  They wanted to divide their existing lot into two lots, with each measuring approximately 29,000 square feet with a width of 147 feet.  The average lot within the subdivision contained approximately 41,000 square feet and measured 181 feet wide.  Both the New Berlin Plan Commission and the New Berlin Common Council denied the Guses’ request based on NBMC §235-23(G).  This ordinance allows the City to prohibit new lots that are smaller than or not as wide as existing lots in the subdivision.  It also allows the city to prohibit the formation of new lots in a subdivision that is more than 25 years old.  The Guses appealed the decision to the district court, arguing that the ordinance was unconstitutionally vague and that the Council’s denial of their request was arbitrary, unreasonable, and discriminatory.  The court agreed and reversed the Council’s decision, ruling in favor of the Guses.  The City appealed.

The Court looked first to the constitutionality of NBMC §235-26(G).  An ordinance is unconstitutionally vague if “it fails to afford proper notice of the conduct it seeks to proscribe or if encourages arbitrary and erratic enforcement.”   The Guses argued it was vague because it did not set forth adequate standards for the City to consider when deciding whether to allow such a lot split.  The Court looked to previous judicial decisions regarding vague statutes and ordinances.  In the case of Humble Oil, the Court struck down an ordinance that allowed a city to prohibit gas filling stations.  In the ordinance in that case, the only factors that were to be considered when deciding on a permit were public health, safety, convenience, prosperity, or general welfare.  The Court deemed those standards to be too vague and concluded there should be some standards to guide the municipality’s actions.

Next the Court looked to cases in which it upheld statutes and ordinances.  In Wadhams Oil Co. v. Delavan the Court upheld an ordinance allowing the city to prohibit a gas station to be placed within 165 of the main street of a city.  In Smith v. Brookfield, the Court upheld an ordinance that required the submission of location and a plan of operation before a board would allow certain types of businesses.  It also contained language in the preamble that required consideration of general welfare objectives.  After analyzing those cases, the Court concluded that “ordinances may vest boards with some (and even significant) discretion without being unconstitutionally vague.”  Turning to the ordinance in question, the Court determined that the New Berlin Municipal Code clearly outlines three considerations for the court to consider when contemplating the issuance of a permit, so it is not unconstitutionally vague.

The Guses further argued that the Council’s decision to deny the request was arbitrary because the lot in question is relatively large compared to those around it, and that the denial was unreasonable because it “lacked a health, safety, or general welfare basis.”  The Court noted that the existence of differences in decisions is not necessarily indicative of arbitrariness.  In making the decision, the Council considered the criteria of the statute and citizen’s opposition to the division, so there was clearly a rational basis for the decision.

The Guses finally argued that the decision was discriminatory because the Council previously approved lot divisions that created lots smaller than the average lot size within the subdivision.  The Court found this claim to be unsupported by the record.  The Guses presented evidence of previous lot divisions, but no evidence of how those lots compared in size to surrounding lots.  The Court reversed the trial court’s decision, ruling in favor of the City.

Proposal sufficient to pass muster at preliminary plat stage despite water pressure and sewage disposal concerns

NOTE:  With the start of fall classes the BLUZ welcomes its newest student contributor, Victoria Heldt.  Tori’s bio appears under “contributors.”  Melanie Thwing is continuing to report on all things land use in her homeland of Wisconsin before she starts law school next fall (Packers news will be filtered out.  Sorry Melanie).

by Victoria Heldt

State of Missouri, Ex Rel., Alexander & Lindsey, LLC v. Planning and Zoning Commission of Platte County, Missouri
(Missouri Court of Appeals, Western District, August 16, 2011)

Alexander & Lindsey, LLC (Alexander) owns approximately 16 acres of property north of Missouri Highway 92 and east of Highway 45 in Platte County, Missouri.  In July of 2007, Alexander filed an application with Platte County for a preliminary plat to subdivide the property into five lots for commercial development with the name “Beverly Plaza.”  In order to subdivide land in Platte County, a property owner must comply with the Platte County Subdivision Regulations of 1992.  The Director of Planning and Zoning, Daniel Erickson, determined that Alexander’s preliminary plat application met all of the requirements of the Subdivision Regulations and recommended approval of the application.

Pursuant to Subdivision Regulations, a public hearing was held in March of 2008, at which Erickson testified that the preliminary plat application complied with regulations.  In addition, a traffic study was completed that was approved by the Missouri Department of Transportation and the Platte County Engineer.  A drainage study was also reviewed and approved by the County Engineer.  Several concerns were raised at the hearing, however, regarding the water and soil testing.  The spokesman for Water District No. 3 stated that the District could provide water service to the property but that it could not guarantee fire suppression adequacy.  The Health Department, which performed soil testing, stated that 2 of the lots did not have adequate soil testing results suitable for septic systems and that those lots may require waste treatment systems using a lagoon or another method.

Erickson stated that some revisions would be made to the plat in response to the opposition to the development from the City of Weston.  These include 75-foot setback along both Highways 45 and 92 would be provided that would require a detailed landscape plan at the time of final plat approval and an area containing a stand of trees would be permanently protected by a stream buffer setback easement.  Greg Hoffman, an alderman with the Weston Board of Alderman, testified that the City of Weston opposes the proposed development of the property because it violates Weston’s scenic overlay ordinance for properties within Weston, which requires a 100 foot setback and other provisions regarding landscaping, massing of buildings, and scenic views.  He noted that the Weston Planning and Zoning Commission had voted down this same request several years prior.

At the end of the hearing, the Planning and Zoning Commission denied the preliminary plat 7 to 1, finding that the application would be detrimental to the public good and would impair the intent, purpose and necessity of the Subdivision Regulations for the following reasons:  1) lack of specification as to the proposed uses 2) infrastructure limitations, such as water for fire suppression, lack of central sewage disposal facilities and inability of the proposed subdivision to support wastewater stabilization ponds 3) the potential impact of wastewater stabilization ponds on neighboring properties and the public 4) potential for traffic hazards created by two access points on Highway 45 adjacent to the proposed subdivision.  Alexander appealed to the County Commission and then to the circuit court, both of which confirmed the Planning and Zoning Commission’s denial of the request. Alexander then appealed to the Missouri Court of Appeals

Alexander asserted that the decision to deny its preliminary plat was arbitrary and unlawful since the plat was in compliance with the requirements of Platte County’s Subdivision Regulations.  The Court of Appeals agreed.  The Court stated that the County Commission is acting in an administrative capacity, not a legislative capacity, when reviewing subdivision plats. As such it has no authority to make subjective judgments regarding the granting or denying of  plats.  It simply has the authority to determine if a proposal complies with regulations.  The Court noted that the County Commission’s four reasons it provided for denial (listed above) were outside the scope of the requirements of the Subdivision Regulations for preliminary plats.  As to lack of specification of proposed uses, nothing in the Subdivision Regulations requires specification of uses at the preliminary plat phase.  Similarly, the regulations do not require an applicant seeking approval of a preliminary plat to resolve infrastructure issues involving fire suppression, central sewage disposal facilities, or wastewater stabilization ponds. The Court emphasized the fact that this was a preliminary plat, which only gives the subdivider permission to proceed with the planning and development phases of the project.  The Subdivision Regulations will still require the final plat to comply with all Subdivision Regulations.  The Court further noted that the general purpose clause of a subdivision ordinance cannot be used as an independent basis for plat denial since it contains “no standards for approval.” Since Alexander’s plat complied, the County Commission had a ministerial duty to approve it and no authority to deny it.The Court concluded that the County Commission’s denial of Alexander’s preliminary plat was arbitrary, unlawful, and not based upon substantial and competent evidence.  It reversed the decision and remanded it to the lower court.

City cannot be sued for failure to enforce subdivision ordinance requiring developer provide improvements

by Gary Taylor

Nelson, et al., v. City of Hampton
(Iowa Supreme Court, August 26, 2011)

A rather complicated twenty year history associated with the platting and development of a residential neighborhood on the northwest edge of Hampton boils down to this:  Three separate subdivisions, each connected by streets dedicated within each subdivision, were planned.  As the project proceeded plans changed, and at a point in 2000 the city and developer reached an agreement that, among other things, obligated the city to surface a 300-foot portion of dirt road that connected one subdivision to the existing street network -which passed both within and outside the boundaries of the subdivision plat – and assess the cost to adjacent landowners.  When the city moved forward with the resurfacing project they prepared an assessment plat and schedule that assessed the adjacent landowners amounts ranging from about $4,000 to 9,000.  The landowners contested the assessments in district court, making three claims: (1) the assessments were void because they were contrary to a city ordinance that requires subdividers to “make and install” the grading and improvement of streets within the final plat of a subdivision by “surfacing or causing to be surfaced the roadways” per ordinance standards; and in the alternative, that (2) the assessments exceeded the special benefits conferred upon the adjacent properties in violation of Iowa law.  The district court rejected both claim, and this appeal to the Iowa Supreme Court ensued.

Agreement contrary to ordinance. The Supreme Court first noted that the legislature has given cities statutory authority to both assess property owners the costs of public improvements based on the benefits they receive from those improvements (Iowa Code Chapter 384) and to charge developers with installing public improvements through the plat approval process (Iowa Code Chapter 354).  Given that both alternatives exist for getting streets constructed, the Court viewed the core question to be whether the city was under a mandatory obligation to enforce the ordinance directive requiring subdividers to “make and install” improvements.  To decide this the Court examined whether the ordinance directive was mandatory or directory, and to decide this the Court will look at whether failure to mandate performance under the ordinance would undermine the purpose of the ordinance itself.  The purpose of the ordinance, as set out in the city code, is to “establish minimum standards for the design, development and improvement of subdivisions” and to make adequate provisions “for public services.” The court concluded that the provision requiring subdividers to install improvements was not mandatory because the end result (a paved road) could be accomplished just as satisfactorily by the city through the assessment process.  In either case, the cost is ultimately borne by the landowners in the subdivision.  In this particular case the agreement allowed for the recoupment of street costs from landowners outside the subdivision who nonetheless benefit from the street.  This result is also consistent with a long line of cases that have sanctioned cities’ decisions to waive plat approval standards when strict adherence to the standards would thwart the objectives of the ordinance.

Special benefits conferred.  The Court further found the amount of the special assessments to be reasonable.  It noted that the law “not only presumes the assessments are correct, but also that they do not exceed the special benefit derived.”  Despite the landowners’ assertions that they would not use the street and it provided them with no additional access, the Court found special benefit in the increase in property values that resulted, and in the transformation of a dirt road into a paved road (despite the landowners’ personal satisfaction with a dirt road).

The district court ruling was affirmed.





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